Search & Seizure

Probable Cause & the 4th Amendment

The cases that define the 4th amendment illustrate the dynamic tension between the need to secure evidence to convict law breakers and the federal and state constitutional protection of a citizen’s reasonable expectation of privacy.

Intrusion by a government actor into a citizen's or agency's personal property or affects, where the citizen has a legitimate expectation of privacy.

The first requirement for a search is government action, because private intrusions, no matter how invasive, do not implicate the fourth amendment. Burdeau v. McDowell, 256 U.S. 465 (1921). The products of private searches are not covered by the exclusionary rule. Walter v. United States, 447 U.S. 649 (1980).

The second requirement is the citizen has to have a legitimate expectation of privacy in the place or item being searched. California v. Greenwood, 486 U.S. 35 (1988) (The Court approved warrantless police searches of trash left in garbage bags at the curb in front of the defendant's house.); California v. Ciraolo, 476 U.S. 207 (1986) (The Court found unreasonable the defendant's expectation of privacy from surveillance by airplane 1,000 feet over his fenced backyard.); Florida v. Riley, 488 U.S. 445 (1989) (The Court allowed surveillance of backyard by helicopter hovering at 400 feet not a search.)

Of interest is the court's unwillingness to protect the space around the item being searched. The drug sniffing dog does not violated a person's fourth amendment right to privacy because the dog is just smelling the air around an item, alerting if there maybe contraband. The space around the item is free to be searched by smell, sight, touch or sound.

In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court held that use of a narcotics-detection dog around a lawfully stopped car does not implicate the fourth amendment because it only reveals the presence of contraband. Also, the dog sniff was lawful because it did not extend the duration of the lawful traffic stop. Id.

However, in United States v. Place, 462 U.S. 696 (1983), the 90-minute detention of the luggage for the sniff test was unreasonable.

When it comes to sight, the item must be viewable without the police intervention. The Supreme Court delivered a singularly favorable decision on the definition of a search in Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, the police were lawfully present in the defendant's apartment and saw electronic equipment that the officer suspected was stolen. The officer moved a turntable to read and record serial numbers that established that the equipment was stolen. Justice Scalia wrote for the majority that even the minimal movement of the equipment constituted a search beyond plain view and, in the absence of probable cause, the evidence must be suppressed.

A officer using the sense of touch may not manipulate an item to determine its contents. In Bond v. United States, 529 U.S. 334 (2000), the court held that an officer's physical manipulation of the outside of stowed luggage on a bus was a search that violated the fourth amendment.

A “seizure” of an item occurs when “there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Karo, 468 U.S. 705, 712 (1989) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)).

A person is seized within the meaning of the fourth amendment “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 545 (1980).

Further, the person must submit to the show of authority. If the individual flees, he cannot be deemed to have been in custody.

Unreasonable Seizure of Individuals
Absent probable cause or judicial authorization, the involuntary removal of a suspect from his home to a police station for investigative purposes constitutes an unreasonable seizure. Kaupp v. Texas, 538 U.S. 626, 629-31 (2003).

The Supreme Court held that the traffic stop of a private vehicle “necessarily curtails the travel a passenger has chosen” and thus constitutes a seizure not only of the driver, but of the passsengers as well. Brendlin v. California, 551 U.S. 249, 257-58 (2007).

Texas - Goldberg v. State, 95 S.W.3d 345 (Tex.App. 2002).

Mr. Goldberg was accused of murder and attempted murder of two employees of a wig store. When Mr. Goldberg first arrived at his father’s home, to which the police had traced the vehicle to, they placed him in handcuffs and performed a pat down.

The court held that whether a detention is an investigative detention or an arrest depends upon the facts and circumstances surrounding the detention. Amores v. State, 816 S.W.2d 407, 412 (Tex.Crim.App.1991); Hoag v. State, 728 S.W.2d 375, 378–79 (Tex.Crim.App.1987); Hilla v. State, 832 S.W.2d 773, 778 (Tex.App. 1992, pet. ref'd). The reasonable use of handcuffs or the ordering of a suspect to lie down alone does not convert an investigative detention into an arrest. Handcuffing alone will not necessarily convert a temporary detention into an arrest. We look to the reasonableness of the officer's actions, which is to be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight. Rhodes, 945 S.W.2d at 118. “Furthermore, allowances must be made for the fact that officers must often make quick decisions under tense, uncertain and rapidly changing circumstances.” Id. Police may use such force as is reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety. Id. at 117. An investigative detention implies that the obtrusive act is for the purpose of actually investigating. Burkes, 830 S.W.2d at 925. Thus, where no investigation is undertaken, the detention cannot be considered investigatory and rises to the level of an arrest. Id.

A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884–85, 20 L.Ed.2d 889 (1968). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997). A temporary detention is justified when the detaining officer has specific, articulable facts at the time of the detention which, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Id. A reasonable suspicion means more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997). A detention is not permissible unless the circumstances objectively support a reasonable suspicion of criminal activity. Id.